RESOLUTIONS.

in rising to call attention to the Report of the Select Committee appointed "to consider the matter of the petition of the Earl of Mar and Kellie, presented on the 5th of June l877"(the prayer in which petition was that the title of Earl of Mar should be brought down to the date of 1565 from its existing place on the Union Roll), "and the precedents applicable thereto;" and to move the following Resolutions—namely,
That the Select Committee thus appointed having reported to the House on the 27th June 1877 'that they had not been able to discover any precedents of orders made by the House for altering the order of precedence of the Peers of Scotland on the Union Roll;' and further, 'that they were not disposed to recommend that any order should be made on the petition of the Earl of Mar and Kellie;'That in order to give due effect to the recommendation contained in this Report it is incumbent upon this House to rescind their order of 26th February 1875, which ran as follows, viz: 'That at the future meetings of the Peers of Scotland, assembled under any Royal Proclamation for the election of a Peer or Peers to represent the Peerage of Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session officiating thereat in his name, do call the title of Earl of Mar according to its place on the Roll of Peers of Scotland called at such election, and do receive and count the vote of the Earl of Mar claiming to vote in right of the said earldom, and do permit him to take part in the proceedings of such election;'That in accordance with the Resolution of 25th July 1862, whereby Scotch Peers are not required to obtain from this House recognition of their titles before enjoying their rights and privileges, and voting at the election of Scotch Representative Peers, John Francis Erskine, being the nephew and undisputed next-of-kin of the late John Francis Miller, Earl of Mar (who died in 1866), and having observed the forms usually complied with by Scotch Peers on succession, is entitled in accordance with the protests made by many Peers at Holyrood to remain in enjoyment of the privileges he inherited as tenant, de jure and de facto, of the earldom of Mar standing on the Union Roll of Scotland, no other person laying claim to that same earldom, and the said earldom having been in no way-affected by the Resolution of this House on 26th February 1875, which conceded to the Earl of Kellie an earldom of Mar of the date of 1565,
said, he was obliged to make an apology to their Lordships for bringing forward a Scotch subject; for ever since he had been in Parliament he had found that Scotch subjects were considered rather uninteresting in their character. He had, in fact, heard it said—"Why can-
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not these Scotch fellows manage their own business?" He must say, for his own part, that if this particular matter had been left to be decided in Scotland it would have been decided speedily, finally, and without ambiguity; and, further, it would have been decided to the satisfaction of the bulk of the Scotch people. He desired to state plainly, and as concisely as he could, the objects of these Resolutions. First of all, he wished that House to extricate itself from what he might term an embarrassing state of ambiguity, which he would explain by-and-by; secondly, he was anxious that the House should uphold Acts of Parliament which were passed in Scotland before the Union, or in the British Parliament since the Union. By an Article in the Treaty of Union it was specially reserved that no judgment of the Court of Session before the Union should be reversed after the Union by a British Tribunal. On the same point he wished to maintain the Resolutions of that House that had been adopted by their Lordships as Standing Orders. Thirdly, he wished to try and remove an imputation under which one whom he must regard as a co-Peer had been lying for some years—namely, that he had assumed a title which was not his by just inheritance. He hoped to be able to show their Lordships that that imputation should be removed; and, further, he was anxious, by these Resolutions, to get their Lordships to show their determination to maintain the integrity of the Scottish Peerage as it appeared on the Union Roll, and as it at present stood as shown by the Reports of the Lords of Session at the command of their Lordships' House at various times—first, in 1708; secondly, in 1739–40; thirdly, in 1760, as well as at subsequent dates. To make his Resolutions intelligible, however, he should be obliged to ask their Lordships to bear with him while he related one or two historical facts which were undisputed, in order that they might really appreciate the case he had to put before them. In the year 1715, when George I. was on the Throne, the Earl of Mar, with many Scotch Peers, was attainted of high treason. In the year 1824, an Act of Parliament called the Restoration Act removed that attainder; but before that Act was passed, it was remitted to the Law Officers of the Crown-—one of whom was the Attorney General, Sir
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John Copley, afterwards Lord Lyndhurst, and another the Lord Advocate of Scotland—to investigate whether John Erskine of Mar was able to make himself out heir of line to the attainted Earl. This was answered in the affirmative by the Law Officers of the Crown. It was stated that he had satisfactorily made out his pedigree. In his favour, therefore, it was that this reversal of attainder was given. Incredible as it might seem, it was to the grandson of this attainted Earl that this act of grace was given, although 109 years had elapsed since the attainder. But, it might be asked, how was the Report in favour of the grandson? He (the Earl of Galloway) said, it came to the grandson through his mother—and he begged their Lordships to take note of this. Now, the whole of this question lay in whether the remainder was to heirs-general or to heirs-male, and in this case he was declared in the Act to be grandson, and the lineal descendant of the attainted Earl, through his mother, Lady Frances. Their Lordships might imagine that this circumstance should be conclusive; but he believed it was said that this was only a description of the grantee, this John Erskine of Mar, who had his title restored, and it was said that it was in consequence of his mother happening to marry a collateral heir-male of the family that he was really awarded this restoration title. He thought the best proof he could give of that was this—that this restored Earl had in his father's lifetime, and after his mother's death, succeeded to the estates in virtue of which he held the title; so actually he had been in possession of the estates during his father's lifetime, in consequence of having succeeded to his mother as heir of line. He hoped he should not be trespassing on their Lordships' indulgence in giving them a still stronger proof, which he found in the short debate that took place when this restoration was being made. Sir Robert Peel, who was then Mr. Secretary Peel, introduced this Bill for the reversal of the attainder in the other House. He said:—
He moved the first reading of five Bills for the reversal of attainders—first, in the case of Lord Stafford, as a reparation for an act of injustice. The restoration of the other titles, however, stood upon a different footing, for they
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were all acts of grace and favour. In addition to Stafford's Bill, he proposed the second reading of Bills for reversing the attainder of the Earl of Mar, Viscounts Ker and Strathallan, and Baron Nairn.
The point he (the Earl of Galloway) wished particularly to draw their Lordships' attention to was this—that in the debate which took place, after various complimentary remarks had been made by Mr. Abercrombie and Sir James Mackintosh, Captain Bruce on that occasion said that—
With the warmest approbation of the principle of these Bills, he could not praise that selection which took the taint from the blood of the lineal descendants of the parties who had first suffered, while the collateral branches of others whose descent was pure in their own line were still thought fit to be excluded from His Majesty's grace. Such was his own case. When His Majesty was in Scotland he had felt it his duty to present a petition for the reversal of this family attainder, and he had never heard since why this partial restoration of honours was selected. His (Captain Bruce's) blood collaterally descended from Lord Burleigh, who died without issue, whose descent was pure and untainted, and yet he was excluded from Royal grace.
This went to show that if he had not been heir of line the reversal of attainder would not have taken place. Lord Binning concurred, especially as by the old Scotch law the claims of a collateral branch were not escheated by forfeiture. He added some words expressive of the unaffected pleasure it gave him to see the illustrious house of Mar restored to its honours. Mr. Secretary Peel, in replying, said he was much satisfied with the approval evinced, and said—
There remained two modes of proceeding, either an indiscriminate reversal of all attainders, or a selection. To the first mode were found objections almost insurmountable, and, indeed, some persons lineally descended had not, on considerations of property, wished for an extension of the bounty to them. Restoration of blood was not, in the language of the law, a matter of grace and favour. As accidentally the Bill for the reversal of the attainder of the Earl of Mar was the last brought in, he begged just to remark that that Earldom was one of the most ancient in the kingdom, and, according to Lord Hailes, existed before any records of Parliament."'—[2 Hansard.]
He had quoted these remarks to show that he was not now dealing with the modern title of 1565, and to show that the title on the Union Poll was still in force, and had not been taken away. He did not know that it could be taken away by Act of Parliament—certainly not with them in Scotland—and he wished their Lordships to grant a mea-
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sure of indulgence, while he showed, why it was that this grandson of the attainted Earl, lineally descended through his mother, was re-instated, and why it was, being re-instated, that he was declared restored to his old family honours, so ancient and illustrious. He would do this by pointing to the circumstances that induced those who made up the Union Roll of Peers in 1605–6—the only time when the old nobles of Scotland were ranked according to their precedence—to put the Earl of Mar where he was on the Union Roll, and where he had stood since that time. When this ranting took place, as their Lordships might be aware, every Scotch noble was directed to produce every document that would show his proper place in respect to precedence. There were then no dates ostensibly attached to Scotch Peerages. An erroneous idea had got abroad that because they are 1457 was put against the Earl of Mar, therefore he could not have shown any document for precedence previous to that year; but that impression was entirely fallacious. What the Earl of Mar produced in 1605–6 to show that he was entitled to the precedence awarded to him was, first of all, a Charter of Isabel. Countess of Mar in her own right, dated 9th December, 1404. He did not refer to the one dated August of that year, which was afterwards declared null and void by the Scotch Parliament, but the later one. In the second place, there was King Robert's Charter affirming the same, and tracing the Peerage through Isabel to Robert Earl of Mar, in 1438, and also the Act of Parliament of 1587, along with other documents. When the Earldom was restored in 1824, it was restored by an Act passed by virtue of his direct succession from Isabel Countess of Mar. But he (the Earl of Galloway) would not trouble their Lordships with the other Acts. He would rather content himself with asking them to mark the quotation from the Act of 1824, for the reason that there were some who held that although it was perfectly true that the restored Earl, in 1824, was restored as the lineal descendant and grandson through his mother, yet that there was nothing in that Act which led to the conclusion that it was to go in remainder to future descendants as heirs general. The quotation read that—
1870Whereas, by an Act passed, John Francis Erskine, Earl of Mar, is the grandson and lineal descendant of the said John, Earl of Mar, that the said John Francis Erskine, and all the persons who would he entitled, after the said John Francis Erskine, to succeed to the honours, &c. …ֵas fully and honourably as if the said Acts of Attainder had not been made.
It was intended that the Act of Attainder should be reversed, and that the family of Mar should be restored to the same position as they occupied before the year 1715. He should be surprised if their Lordships did not agree to that proposition, as he thought it was too plain and manifest that that was the intention. In 1824, the grandson was restored, and the following year, 1825, he was succeeded by his son, who in 1828 also died, and was succeeded by his son. Up to that time, he would mention, the succession went as Earl of Mar. There was no doubt that he was entitled to the title of Kellie, which became vacant a year after he succeeded to the Earldom, of Mar. But the Earldom of Kellie being a title somewhat lower down, it was thought by the ninth Earl of Kellie, who died some time previous, that the Earl of Mar might not care to acquire the lower title also. The late Earl of Mar, however, did claim the title of Kellie, and it was adjudged to him in 1835. Thenceforth he bore the title of the Earl of Mar and Kellie, and he was the only Peer of that title that had yet existed. The Earl having died in the year 1866, brought matters down to the time of the present unfortunate discussion. In the year 1866 the Earl was succeeded by his sister's son, John Francis Erskine Good-eve Erskine. During the late Earl of Mar's lifetime his nephew had always been looked upon as his heir, and in proof of the Peerage having descended to him through the female line four centuries and more back, he himself protested that he was premier Earl. He further enjoined upon his nephew that when he succeeded the same protest was to be made—namely, that he was premier Earl. He would there point out to their Lordships that John Francis Erskine was exactly the same relation to the son of the restored Earl as the restored Earl was to the attainted Earl—namely, grandson and lineal descendant, through his mother bearing the same name, Lady Frances. Thus he was heir general to his uncle, according to the Scotch law, the same way as his relative,
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Colonel Erskine, succeeded as heir male to the title of Kellie. Then he was presented to Court as Earl of Mar, and his vote was taken over and over again as Earl of Mar at Holyrood. Moreover, his cousin, Earl of Kellie, continually addressed him as Earl of Mar, wrote to him as such, and received him at his house as Earl of Mar. Indeed, there was no question about the matter of any sort or kind, and it was more than a year afterwards when a change came over the spirit of his (Earl of Kellie's) dream. On one occasion, when the Earl of Mar's vote was recorded, and accepted, as usual, at Holyrood, it was protested against in their Lordships' House as void by the Earl of Kellie. The question, therefore, came before the House whether the Earl of Kellie's protest was thought admissible. This was decided against the Earl of Kellie, and the Earl of Mar's vote was accepted as valid, and nothing had occurred since that time in the least way to challenge the validity of the vote. In the following year, 1867, the late Earl of Kellie began to lodge cases in their Lordships' House, claiming to be Earl of Mar. He was never ready, however, to proceed with those cases, and the House was constantly prevented from proceeding with them, on account of being constantly asked to wait for more and more evidence. The Earl of Mar immediately presented a Petition as Earl of Mar, asserting his right to the title, and protesting against the claim of the Earl of Kellie. It was in the year 1871 that the Earl of Kellie's counsel announced in their Lordships' House that he was prepared, or that he would be prepared in the following Session of 1872, to go on with this case. In January 1872, however, the Earl of Kellie died, and of course that ended the case for that Session. But then, he was sorry to say that the late Earl's son and successor, the following year, 1873, produced another case. If he (the Earl of Galloway) remembered right as to the position of the matter, at that time the son was not himself prepared or ready to proceed. The case was, therefore, held over or dropped, and in the year 1874 a second case was lodged, and he would mention that the Petition of the Earl of Mar had been lying in their Lordships' House during those years waiting to be heard against the cases that had been lodged. He wished further to explain
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that the Earl of Mar had never been a claimant. It had been said that he had been a claimant; but he was in a position to entirely deny that assertion. He simply acted in a Constitutional manner in coming to their Lordships' House and taking the action he did. He succeeded as heir to his uncle, and the only possible way in which he could be put out of his position was by some other claimant coming in, and claiming, not a title which was not upon the Union Poll, but his title which was upon the Union Roll. The case in question was tried; but before it was tried in the year 1873–74, the opinion of the Law Officers of the Crown was requested as to the right of claim put in by the Earl of Kellie to the Earldom of Mar. He would ask their Lordships' indulgence while he read the opinion of the Law Officers of the Crown upon the matter. But first he would remark that there was a change of Government at the be-ginning of the year 1874, which their Lordships would remember, and so, by a chapter of accidents, in 1873 the matter was relegated to the Law Officers of the Crown under Mr. Gladstone's Government, and the case not coming on, it was further relegated to the Law Officers of the Crown under Mr. Disraeli's Government of 1874. It was a fact, however, that the Law Officers of the Crown of 1874 held the same opinion upon the subject as the Law Officers of the previous Government. Therefore, the Law Officers, both Scotch and English, in 1874 endorsed the opinions of those of 1873. It was insisted in their Report, over and over again, that the succession to the Earldom of Mar should continue through the female line, and allusion was made to a Charter of Queen Mary, in which the words were used "restored to heirs general in 1565 continuing." The Law Officers of the Crown then continued—
It was immaterial, however, to consider whether there was a re-creation or a restoration to the dignity of Earl of Mar in 1565, inasmuch as if it was a re-creation, the surrounding circumstances were sufficient to indicate the intention that the dignity should descend to heirs general and not he limited to heirs male. On the other hand, if it was a restoration of the previous dignity,"[as they upheld]"there is sufficient evidence to show that it is in like manner descendible to heirs general, and hence that the heir male, Lord Kellie, has not made out his claim to the dignity of Earl of Mar, in the Peerage of Scotland.1873
He need not remind the House of the terms of the Act of 1824; but he desired to advert to what was technically called the judgment of the Committee of Privileges. He wished to say one or two words about that matter, because it had been wrongly held that the Committee of Privileges was identical with the final Court of Appeal. He was quite certain that he only had to appeal to the noble and learned Lord on the Woolsack to corroborate him when he said that the Committee of Privileges stood in the light of a Court of advice to their Lordships' House. When Petitions were presented to their Lordships by the Crown for their advice, they were generally referred to the Committee of Privileges, who advised the House as to what course should be taken thereupon. And what was the judgment, so called, upon the matter in question, which the Committee of Privileges put forth? It was as follows:—
Resolved, that it is the opinion of this Committee that the Claimant, Walter Henry, Earl of Kellie, Viscount Fenton, Lord Erskine, and Lord Dirleton, in the Peerage of Scotland, hath made out his claim, &c., to the honour and dignity of Earl of Mar, in the Peerage of Scotland, created in 1565;" and "that report thereof be made to the House.
He wished the House to observe that it was an opinion of the Committee that it was the creation of July or August 1565, because in the elaborate speeches made by the learned Lords on the occasion, it was specially stated that no weight was to be put upon the Charter of Queen Mary of the 23rd of June, 1565. That Charter they implied had nothing whatever to do with the case. They avowed that "There was not a little of evidence to guide them in forming an opinion;" and they said it was evident that a Charter must have been created between the 28th July and the 1st of August. Therefore, putting on one side and up-setting the validity of the Charter of Queen Mary as they did, it was not for him to call into question the Resolution of the Committee of Privileges, and he did not intend to say whether they were right or wrong. He would reserve that to himself. The opinion of the Committee of Privileges, technically called a judgment, was not in his opinion—and he wished to enforce the point upon the consideration of the House—of any actual judicial importance. It was specially stated that it was not a judgment, but only an
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opinion, and that should be made clear, because the Resolution of the Committee being taken as a judgment stood in the way of the vote of so many in their Lordships' House. The opinion was recorded on the 25th of February, 1875, and was reported to the House and sent to the Lord Clerk Register on the 26th of the same month. He was surprised that the matter was carried out in such an informal and hurried manner. After this, the Earl of Mar, the heir general and nephew to the late Earl, who died in 1866, attended at an Election of Representative Peers at Holy-rood, and offered his vote as a Scottish Peer on the Union Roll. He was shocked to say this was refused by the Lord Clerk Register. This refusal was, he thought, an illegal act on the part of the late Sir William Gibson-Craig. The Earl had as good a right as any other Peer in Scotland to record his vote on that occasion, notwithstanding this very remarkable order sent down to the Lord Clerk Register. If the order was not intended for the Earl of Kellie in respect of his comparatively novel Peerage of 1565, it was ambiguously worded; but if that order was intended to relate to this Earl of Kellie who had just been given his new creation of Earl of Mar, it was, he had no hesitation in saying, ultra vires of their Lordships' functions. It was a legislative act which could only be performed by the whole of the Estates of the Realm. A right to vote was possessed by one Earl; but to give an order in consequence to the Lord Clerk Register to accept his vote as a Peer upon the Union Roll of another date than that of his Peerage was a legislative function which, with all due respect to their Lordships, he said was not within their Lordships' prerogative. It was, therefore, an informal order without precedent, and also an illegal order. In addition, there were eight Peers aggrieved by this order. If the Earl of Kellie, who had just been given this new title, was empowered to vote in respect of the Earldom of Mar on the Union Roll of Scotland which had not been awarded to him, those seven or eight Peers were aggrieved whose Peerages came in precedence between the old Earldom of Mar on the Union Roll and that accorded to the Earl of Kellie, and accordingly more than half of these immediately protested against what had
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been done. These protests had been going on since, and had been increased. Each year they would increase until some notice was taken of their protests and right was done them. He would have wished, had there been time for it, to call attention to the Report of the Select Committee appointed in 1877, to show that there were no precedents for altering, as they had done, the precedence of the Union Roll. The Lord Clerk Register of Scotland had been ordered again and again to send a return of the Roll of Scotch Peers, and it had always come back in the same way. In the year 1739–40 the House of Lords ordered the Lords of Session to make up a Roll and send it to the House. The Lord Chancellor in 1740 acquainted the House of Lords that the Roll had been received. Their Lordships had ordered also a Report as to the limitations of Peerage, and the Lords of Session replied that they had great difficulty in answering that part of the order relating to the particular limitation of Peerages, and were only able instead to make the following remarks, to which he called the special attention of the Chairman of Committees:—
First, they take the liberty to remark that they cannot discover the records of any patent of honour created at a period earlier than the reign of King James VI.,
who followed Queen Mary.
Before that time titles of honour and dignity were created by erecting lands into earldoms and lordships.
He must be permitted, as regarded this creation, to quote what was written in Hansard as having been said by his noble and learned Friend who was on the Woolsack last year, and also one remark of the noble and learned Lord now on the Woolsack. The late Lord Chancellor (Earl Cairns) remarked last year—
All I have to say is this: that the Peerage on the Roll which is called the Mar Peerage is not the Peerage which has been attached in this House to the Earl of Mar and Kellie; and, therefore, the Earl of Mar and Kellie should not be allowed to answer in this call."—[3 Hansard, ccxlviii. 137.]
The present Lord Chancellor said, on the same occasion—
The House has decided that a Peerage of Mar was created by Queen Mary, and that the Peerage so created belongs to the Earl of Kellie; but it has pronounced no judgment, either affir-
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mative or negative, with respect to the ancient Earldom of Mar."—[I bid. 146.]
This order was, therefore, as he had shown, utterly at variance with the recorded opinion of the Committee of Privileges as to the awarded claim of the Earl of Kellie; and he maintained that the Earl of Mar, who succeeded his uncle, would be defying the Resolution and Standing Order of this House if he came and made his claim at the Bar of the House. This heir to the old Earldom of Mar was exactly in the same position as every one of the Scotch. Peers; and until some one made a protest against his being the rightful heir to the title as he was, being indisputably the heir of his uncle, it was their duty to acknowledge him as Earl of Mar. What he wanted to place before them was this: supposing the Earl of Mar were, in defiance of the Standing Orders of this House, to come and claim at the Bar the concession of his right, he could not imagine there would be much doubt as to the result. It was undoubted that he could show the Charters, Acts of Parliament, and other deeds, which must convince the Law Officers of the Crown that he was the rightful heir to the old title. It was impossible to think that that House would be likely to reverse the old Acts of the Scottish Parliament and the judgments of the Court of Session, and to override the opinion of the Law Officers of the Crown and the Act of the Imperial Parliament of 1824. It was inconceivable that if the Earl of Mar came and made that claim the noble and learned Lords in that House would adopt such an extraordinary course. They would have to concede his right; but the fact of their doing so would not interfere with the rightful position of the Earl of Kellie. He would still be in the same position as he now was with respect to the Peerage of 1565. He had intended to bring some additional details before their Lordships; but he really thought it was unnecessary. He must, however, remark that he was suffering very great disadvantage from the fact that many noble Lords who took a great interest in this question were, unfortunately, obliged to be absent. There was Lord Crawford, the Marquess of Bute, and the Earl of Stair, besides Lord Napier of Ettrick, who had protested over and over again against what
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had been done at Holyrood. These noble Lords were all absent, and the Duke of Marlborough—who was interested in a Scotch title his ancestors held before they ever had an English one, but which, not being descendible to heirs female, he no longer possessed—had not been able to be present. There was a great deal of delicacy of feeling amongst the Peers in this House about this question, as it seemed like making a sort of attack upon the judgment of the House of Lords. This he disputed, and having looked into this question very carefully, which, as it happened, he had done at the request of his noble Friend the Earl of Kellie, who was interested so deeply in it, he had come to the determination that, whatever obloquy he should receive, he would be true to the traditions of his order, true to his co-Peers in Scotland, and true to this House of Parliament, and put before their Lordships what he thought was the right view of the case. He thought he had conclusively proved his case to their Lordships; and he would ask them to uphold the laws of the country, to uphold the Standing Orders of this House, and to acknowledge one of their co-Peers who had indisputable rights which they were bound to recognize. He earnestly asked them to put aside the idea that they were acting against the law in any way, or against precedent, in giving effect to his Resolutions in sweeping away the order to the Lord Clerk Register. He found that his claim to their Lordships' support, in behalf of his 2nd Resolution, rested on the Standing Order of the House, which had become a Standing Order, at the instance of the noble Duke (the Duke of Buccleuch), who, in 1862, induced the House to rescind Lord Rosebery's Resolution of 1822. With respect to this 2nd Resolution, it had no effect one way or another except that it announced the Standing Order of the House with respect to Scotch Peers, for the Earl of Mar had no more business to come to the Bar of that House to make claim to his title than had any other Scotch Peer. That was done by another ceremonial altogether in Scotland. He prayed that his noble and learned Friends the late and the present Lord Chancellors would look fully at the question, and he would venture to say they would find the difficulties could only be aggravated by not getting rid of this order of the House to the Lord
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Clerk Register, which was the subject of his 1st Resolution; and, by accepting the 2nd Resolution, the noble and learned Lords would be only accepting a Resolution which embodied what was at this moment a Standing Order of that House. The noble Earl concluded by moving the Resolutions of which he had given Notice.

§Moved to resolve, That whereas the Select Committee appointed "to consider the matter of the petition of the Earl of Mar and Kellie, presented on the 5th of June 1877" (the prayer in which petition was that the title of Earl of Mar should he brought down to the date of 1565 from its existing place on the Union Roll), "and the precedents applicable thereto," reported to the House on the 27th July 1877 "that they had not been able to discover any precedents of orders made by the House for altering the order of precedence of the Peers of Scotland on the Union Roll," and further "that they were not disposed to recommend that any order should be made on the petition of the Earl of Man and Kellie"; in order to give due effect to the recommendation contained in this Report it is incumbent upon this House to rescind their order of 26th February 1875, which ran as follows, viz.: "That at the future meetings of the Peers of Scotland assembled under any Royal Proclamation for the election of a Peer or Peers to represent the Peerage of Scotland in Parliament, the Lord Clerk Register, or the Clerks of Session officiating thereat in his name, do call the title of Earl of Mar according to its place on the Roll of Peers of Scotland called at such election, and do receive and count the vote of the Earl of Mar claiming to vote in right of the said Earldom, and do permit him to take part in the proceedings of such election."—(The Earl of Galloway.)

THE LORD CHANCELLOR

said, the noble Earl who had just addressed their Lordships had no occasion to apologize for bringing this question before the House merely because it was a Scotch question. The attention of the House had shown that it was an interesting question to many of their Lordships. He entirely sympathized with the historical interest which attached to it in the minds of many of the Scotch Members of their Lordships' House, and also with the personal feelings which his noble Friend had expressed towards the gentleman whose claim he had so ably advocated. The only thing which he could not help regretting when he heard his noble Friend was, that he was not addressing the rather more limited assembly of their Lordships' House, which met at an earlier hour of the day, and that he was not clothed in habiliments similar
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to those in which he (the Lord Chancellor) was obliged to address them. The speech would have done credit to an advocate at their Lordships' Bar. What the noble Earl had done was to invite their Lordships to deal judicially with a question which had not come before them in a judicial manner, and to supersede entirely the established usage and practice of their Lordships' House in respect to the proper manner of dealing with judicial questions. He had not the least doubt of the sincerity of his noble Friend when he said that his object was to uphold the laws of the country, and to maintain the authority of the Orders of their Lordships' House. He hoped the noble Earl would think him equally sincere when he said that if they were to take the advice which the noble Earl had given them, the result would be to subvert the laws of the country, and the order and usages of their Lordships' House. The noble Earl had dealt with two distinct subjects; and he would say, before he made the few observations he thought it his duty to make upon these subjects, that he would rigidly abstain from entering into the merits of the legal questions with which the noble Earl had dealt. The Motion dealt with two subjects—one, the right to a certain Peerage, and the other the right to a certain precedence upon the Union Roll. The more important of these subjects was the title to the Peerage, and that, he supposed, was the main object which the noble Earl had in view. The noble Earl asked their Lordships to adopt a Resolution by which they would declare that—
John Francis Erskine, being the nephew and undisputed next of kin of the late John Francis Miller Earl of Mar (who died in 1S66), and having observed the forms usually complied with by Scotch Peers on succession, is entitled in accordance with the protest made by many Peers at Holyrood to remain in enjoyment of the privileges he inherited as tenant, de jure and de facto, of the Earldom of Mar, standing on the Union Roll of Scotland, no other person laying claim to that same earldom, and the said earldom having been in no way affected by the Resolution of this House on 26th February, 1875, which conceded to the Earl of Kellie an Earldom of Mar of the date of 1565.
This was to declare that, this House, sitting in its legislative capacity, without any reference from the Grown, and without any opinion by a Committee of Privileges, could properly assert that the
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noble person named—for, undoubtedly, he was noble by birth, and he was quite willing in courtesy to call him so—the Earl of Mar, though not yet recognized by their Lordships' House, and was entitled to all the rights appertaining to that Earldom, including those of a vote, and a certain precedence at the election of Representative Peers in Scotland. He (the Lord Chancellor) ventured to say that such a Motion was absolutely unprecedented in any case of either an English, Scotch, or Irish Peerage. He need not remind their Lordships of the course which was invariably taken when a claimant, finding his right to be a subject of controversy, took means to establish that right.; He petitioned the Crown to declare his right. The Crown referred that Petition to their Lordships' House, and the House sent it to the Committee of Privileges according to their invariable usage and practice, because the matter required to be dealt with in a judicial manner, and upon judicial principles. That Committee comprehended all the legal ability in their Lordships' House; but it was not confined to lawyers. It comprehended those who were accustomed to attend to the Business of the House, and any noble Lord who was desirous of attending was as much at liberty to do so as any other. That was the Constitutional way of dealing with a question of this kind; and he must confess he was a little surprised when he heard the noble Earl, who had evidently taken great pains to inform himself on this subject, say it was an unconstitutional thing, and a defiance of some supposed Standing Order of their Lordships' House, for a Scotch Peer who claimed a title which was the subject of controversy to seek to establish his right to the title by a Petition to the Crown, which could be referred to the Committee of Privileges. The noble Earl had given no reason for that extraordinary opinion. The thing was constantly done. When a person claimed a Scotch Peerage by remote collateral succession, or when any other circumstances raised a doubt or controversy, he petitioned the Crown; and the Crown, as a matter of course, referred the Petition to the House, and the House, equally as a matter of course, sent it to the Committee on Privileges. And if the noble person whose cause the noble Earl had advocated desired this course to be
1881
adopted, it was perfectly competent for him to do what he had described. He would not by so doing be contravening any Order of their Lordships' House, and he thought it would be the natural, and the prudent and proper, course to adopt. The only ground for that singular opinion of the noble Earl was an Order made some years ago by the House, on the Motion of a noble Duke (the Duke of Buccleuch) to the effect that in certain circumstances, where a person succeeded to a Peerage by collateral and not direct descent, he should come to that House and establish his right before his vote was admitted at Holyrood. About ten years after this Order, for reasons which the noble Duke would, no doubt, himself state to the House, it was thought right that it should be rescinded; and the consequence was, that at the present time there was no Order of their Lordships' House which prevented any claimant to a Peerage in Scotland from assuming the title and claiming to vote at the election of-Representative Peers. But it was quite a non sequitur, his noble Friend would allow him to say, to suppose that because no such claimant was obliged to come and so establish his right, that his right was to be taken as capable of being otherwise established when the claim was matter of controversy. In point of fact, they all knew that many such claims had been made, and many such had been admitted, as far as voting at Holyrood was concerned, which were wholly and absolutely unfounded, and in which the position of the claimants was extremely different from that of the noble person here concerned. But to say that in every case of the assumption of a title which was in controversy, and where there was a serious legal doubt, therefore their Lordships' House should declare off-hand who had the right to it, was a proceeding quite inadmissible. There was another course which might be pursued, and that had been pointed out in the Report of the Select Committee of their Lordships' House which sat in 1874. He could not imagine why that course had not been taken. It was there pointed out, that in an Act of Parliament, passed in 1847, there was a provision settling the mode of proceeding when any question of this kind arose. The solution so prescribed by the Statute Law of the Realm was, that if a right
1882
to vote was claimed at Holyrood in an election of Representative Peers, and any two Peers should protest against that vote, the matter must be reported to the House of Lords, and the House must deal with it. It would call the person who claimed to vote to substantiate his right; and if he did not come forward and do so, or if he failed to do so when he did come forward, he was, by the Statute Law of the Realm, to be for ever excluded. The Committee of their Lordships' House decided that that was the natural way of bringing any such claim to the test. Why had this not been done? The noble person who claimed to be the ancient Earl of Mar had not, as far as he (the Lord Chancellor) was informed, since that Resolution was passed, tendered his vote at the election of Representative Peers. An election was held at Holyrood only the other day. If he had done so, he thought it highly probable that two Peers would have been found to enter a protest against receiving that vote, if only for the sake of having all ambiguity on this question cleared up. He could not think that the friends of that gentleman who, having that mode of establishing his right, had, for whatever reason, not thought fit to take a step which would have made it possible to establish it, were now entitled to come to their Lordships' House and summarily declare that, without hearing evidence, or the arguments of counsel, or going judicially at all into the matter, their Lordships should assume his right to the title, and act as if it had been proved before them. In regard to the Report of the Committee on Precedence, although the Committee did not think it necessary or expedient to say that their Lordships could not, under any circumstances, deal with the question of the Union Roll of the Peers in Scotland, they had pointed out that there was no example of any such thing having been done. On that Union Roll and on the earlier Decreet of Ranking of the Commissioners of King James VI. from which it was made up, there had been placed, and there had remained since 1606 in the order in which it now stood, the Earldom, and only one Earldom of Mar. Whether it was rightly placed there or not might be a matter of controversy. He thought it would not be easy to reconcile its exact place on that Roll, either with the date of
1883
the first creation of the ancient Peerage, or with that of the Peerage which the House found to have been created by Queen Mary in 1565. But what he wished to point out was this—that whether that precedence was or was not capable of being reviewed and altered by some competent authority—if their Lordships were that authority—they could only exercise such a power after a Petition was presented to the Crown, and referred by the Crown to their Lordships' House, and they could only exercise it judicially, as they would deal with every other question as to dignities or honours so referred to them by the Crown. If the matter were to go before their Committee of Privileges, all the materials relating to it would be brought before the Committee, and, no doubt, it would be duly and properly considered. He rested his objections to the course now proposed on this fact—that there was on the Union Poll only one Earl of Mar; there had never been more than one; and it must be determined judicially that there existed another Earldom of Mar before their Lordships could rescind the Order and adopt the Motion, which proceeded essentially upon the assumption that there was another. For these reasons, and feeling that their Lordships could not properly enter further into the merits of the case, he should resist the Motion before the House.

said, the difficulty was this—that their Lordships' House had given an Order which there was great difficulty in following out. First of all, they had decided there was a Peerage which nobody ever heard of before the Earldom of Mar of 1565. They could not dispute the validity of that proceeding, though the majority of persons in Scotland believed no such Peerage existed. On the former occasion on which this subject had been discussed, he had thrown out a challenge to any noble Lord to show one single tittle of evidence in any document drawn from history that such a Peerage existed, and the challenge had not been met. How did the matter stand at present? At the election of Peers in Holyrood the Earl of Mar was called. A noble Lord got up and claimed to vote in respect to that title, which was founded in 1457; but his title was admittedly the later one, said to be created in 1565. How could they possibly reconcile this claim?
1884
When a protest was made against his vote being received in respect of the old Earldom of Mar, the Lord Clerk Register said—"I have received an Orderfrom the House of Lords, and I must obey it." Now, their Lord ships ought to rescind that Order. The noble and learned Lord on the Woolsack said there was no precedent for rescinding that Order; but he forgot that the Order of the House was rescinded in 1864. Many noble Lords who spoke on this subject on the last occasion were perfectly ignorant not only as to the theory and the law, but as to the practice of the law of Scotland; and he wished that such cases were referred to the Court of Session, where they were acquainted with the Scotch law. He intended to support the Resolutions of his noble Friend.

THE MARQUESS OF HUNTLY

said, that, though this might be a very dull matter to English Peers, it was a question which Scotch Peers thought very strongly about, and which affected the position of every Scotch Peer at that moment. He had not intended to take part in that debate, having made some observations upon the case on a former occasion; but, as a Scotch Peer, he objected to the remarks of the noble and learned Lord on the Woolsack when he said that the Earl of Mar should have tendered his vote at Holyrood, that two Peers should have protested against his vote being received, and that then the Earl of Mar should come and claim his rights in that House. A large minority of Scotch Peers had already protested against the Earl of Kellie's vote being received as Earl of Mar, and that noble Earl should be called upon to come and prove his right to such vote. All that these Resolutions would do was to rescind the Order which had been made; and if they were agreed to he would have to come to prove such right. He protested against the Earl of Kellie giving a vote in the Peerage of Scotland which had not been adjudged to him. There was a question whether it was necessary for Scotch Peers to come to that House to prove their right or their claim to vote. Many Scotch Peers had not been required to do so. He would suggest that the matter should be referred to a Select Committee.

THE EARL OF CAMPERDOWN

said, that the two Resolutions were not quite
1885
consistent. There were many persons who might find themselves able to vote for one when they could not vote for the other. That was the position in which he found himself placed. He could not vote in that House that Mr. John Francis Erskine was entitled to the Earldom of Mar, because the House would obviously in that case be acting without any evidence before it and in a judicial manner. He would, therefore, suggest that the noble Earl opposite (the Earl of Galloway) should withdraw his 2nd Resolution. With regard, however, to the other Resolution, as to the question of precedence, he thought there was a good deal to be said in favour of the case put before their Lordships by the noble Earl opposite. He asked the House to rescind an Order of the House; and if the House could send down an Order it could rescind it. What had been the effect of the Order? It was virtually a direction to the Lord Clerk Register to accept the vote of the Earl of Kellie as Earl of Mar. At the present moment the Earl of Kellie, whenever there was an election of Representative Peers of Scotland, voted as Earl of Mar, and in virtue of a Peerage of 1450 to which he had never ventured to lay claim, and which was the Peerage which Mr. Erskine did claim, and which he was entitled to according to the findings of the Scotch Courts, whatever those findings might be worth. If Mr. Erskine wished to prove his title conclusively he must come to that House. But that was no reason why the House should not rescind the Order which gave the Earl of Kellie the privilege of voting in virtue of a Peerage to which he laid no claim. If the noble Earl opposite would withdraw his 2nd Resolution he should have much pleasure in voting with him.

LORD INCHIQUIN

said, that even if the course recommended by the noble Earl opposite (the Earl of Camper-down) were followed, their Lordships, by agreeing to the 1st Resolution, would virtually declare that Mr. Erskine was entitled to the Earldom of Mar without having heard the evidence on which his claim was founded. He thought that was a most irregular course, and one which the House could not adopt.

said, that as he had been referred to during the debate, he might say that he obtained in 1862 the abrogation of the Order passed at the instance of the late Earl of Rosebery in 1822 because it did not work well. The question was, who was Earl of Mar? The Earldom claimed by the Earl of Kellie was the Earl of Mar on the Union Roll. Now, very few of the Peers on the Roll were placed in their proper position. As he understood, the Union Roll was so named because it was the Roll of Peers called for by that House after the Act of Union, between England and Scotland was passed. It was the Roll of Peers who were called to the Scottish Parliament. He thought Scotch Peers should be called upon to go through every form which an English or an Irish Peer went through when he succeeded his father or a collateral inheritor. They ought to prove their right on petition to the Crown, when it would be referred to that House, and then to the Lord Chancellor; and if everything were found by him to be in order he would report to the House; but if not it would be referred to the Committee of Privileges for the matter to be judicially considered.

LORD HOUGHTON

questioned the fitness of the Committee of Privileges to determine the points relating to the disputed Earldom, and argued that they could only be decided after a serious historical inquiry.

LORD BLANTYRE

said, surely if John Francis Goodeve Erskine ought to prove his succession to the old title of Earl of Mar, the Earl of Kellie was equally bound to do so. It was undisputed that the old Earldom of Mar, which owed the high place it did on the Union Roll from the date 1457 being attached to it, passed to heirs general (female as well as male), and that John Francis Good-eve Erskine (not the Earl of Kellie), was heir general and next of kin to the late Earl, who died in 1866. Lord Kellie had not claimed any title of earlier date than 1565, because there was a nearer heir than himself to the old Earldom of 1457 on the Union Roll.

THE EARL OF GALLOWAY,

in reply, said, as far as he could follow the arguments, they only gave reasons why the Resolution standing on the Paper
1887
should be accepted. He asked their Lordships to rescind the Order of February 26, 1875, in order to clear the atmosphere. He must take exception to what the noble and learned Lord on the Woolsack had said when he referred to the Earldom of Mar, said to have been created in 1665, and said Mr. Goodeve Erskine was a "claimant." He never was a claimant, and no one in the House could show a reason why the Earl of Mar should be put in a different position from any other Scotch Peer in the House. He wished again to say that he did not put any stress on the 2nd Resolution, as it would not help the question one way or the other; but he could not follow what his noble and learned Friend on the Woolsack said, nor see any reason why their Lordships should not accept the 1st Resolution. He would withdraw the other, after the general support he had been accorded on both sides of the House. If the 1st Resolution were not accepted he would certainly go to a division upon it.